Navigating Without a Lawyer

There is growing concern about the increasing number of family litigants without lawyers, but there is almost no research about why these litigants decide to have, or not have, a lawyer.

We report here on the first study about the decisions of Ontario family litigants whether to have a lawyer. This study was undertaken over the past year at six court sites in four Ontario cities, with law students from Pro Bono Students Canada surveying 275 litigants, about 60 per cent without lawyers and 40 per cent with lawyers, and roughly equal numbers of men and women.

Not surprisingly, those with higher incomes were significantly more likely to have lawyers than those with lower incomes. There were no differences in rates of legal representation between men and women at each income level.

The vast majority of those with lawyers stated that they planned to continue with their lawyer, and reported that their lawyer was very helpful (62 per cent) or moderately helpful (19 per cent); only two per cent said their lawyer was not helpful. Most of those with lawyers (73 per cent) expected that they would obtain a better outcome as a result of having one, and more than a third expected that the process would take less time having a lawyer.

The most common primary reason for having a lawyer (41 per cent) was the expectation of a “better outcome,” while 26 per cent cited lack of knowledge of the legal process, and five per cent reported not wanting to directly deal with the other party.

Of the respondents without representation, 49 per cent said their primary reason was that they did not have enough money and did not have legal aid. Eight per cent were waiting to see if the other party would have a lawyer, suggesting that lack of representation can feed on itself.
A further eight per cent expressed a concern that having a lawyer would increase the delay, cost or conflict involved. Five per cent expressed the desire to directly confront a former partner — these are individuals who are likely prone to high conflict proceedings.

About two-thirds of those without lawyers reported that it is difficult or very difficult to navigate through the family court system as a self-represented litigant, and almost half felt that not having a lawyer slowed the process. A significant portion of those without lawyers, however, reported that they had access to sufficient information about family law to represent themselves, in particular from the Internet.

About half of those without lawyers believe that judges listen more to those with lawyers, and expressed concerns such as feeling like “second-class citizens” because they were unrepresented. But roughly three-quarters of those without lawyers reported at least moderately good treatment from court staff and judges.

Significantly, a majority of unrepresented men did not expect a worse outcome for economic issues because they were unrepresented, but a majority of represented men would expect a worse outcome if they were without counsel. Somewhat surprisingly, almost 10 per cent of self-represented men believe that they would experience worse outcomes if they had a lawyer.

By contrast, among women, perceptions of the value of having a lawyer for economic issues are very similar for those with and without representation, with most women expecting better outcomes for those with lawyers.

While many of those without lawyers reported reasonable satisfaction with the family justice process, there were also many who expressed profound stress and depression with their situation, and concern about the effect of not having a lawyer for themselves and their children.

A recurring theme found in the comments of men was a perception that the family court system is biased against men, reflected in statements such as: “You need a lawyer to have any chance of getting a favourable decision. This applies especially if you are male since family court judges favour women.”

Women, on the other hand, tended to raise financial and safety concerns for themselves and their children, as well as about access to justice.

Our survey confirms the views of many family lawyers and judges that the key reason for not having representation is the lack of financial resources and ineligibility for legal aid. However, many are choosing to not have a lawyer because they believe that their money is better spent in other ways. Many of the unrepresented are being helped by increased access to information and feel reasonably comfortable dealing with the family justice process.

Given the high cost of legal representation and the availability of “free” government services, it may well be a sound decision for some individuals to decide not to retain counsel (although these litigants are imposing costs on the justice system and government, and often on the other party). However, for a very significant portion of family litigants who are unrepresented for financial reasons, there are serious concerns about outcomes for them and their children.

Clearly, more needs to be done for the vulnerable unrepresented litigant, if not by a shrinking legal aid scheme, then by an expansion of services provided by limited scope retainers, efforts to reduce the cost of legal services and perhaps more use of paralegals.

There are also many “do-it-yourselfers” who can afford a lawyer but choose to represent themselves. Some of them, especially men, believe that they will have better outcomes if they represent themselves, or may relish the prospect of personally confronting their former partners. While individuals have the right to represent themselves and take their disputes to court, there must be greater effort to educate litigants about the value of obtaining sound legal advice. Further, in appropriate cases, those who choose to represent themselves and thereby impose costs on the other party because of procedural errors, prolongation of trials or rejection of reasonable settlement offers, should be ordered to pay the costs imposed on the other party.

Rachel Birnbaum is an associate professor, cross appointed in childhood studies and social work at King’s University College, Western University. Nicholas Bala is a professor of law at Queen’s University. Their research is supported by a grant from the Social Sciences and Humanities Research Council, and will be the subject of presentations over the coming months at Ontario’s Family Law Summit and the National Family Law Program.